Posted
by
CowboyNeal
on Friday January 21, 2005 @01:18AM
from the high-noon dept.

An anonymous reader writes "The Supreme Court has set March 29th as the date for oral arguments to begin in the Grokster trial. As we all know the final ruling will have ramifications on the tech world well beyond P2P. A decision is expected by end of July."

March 29 is the date set for oral arguments in MGM v Grokster when the major movie studios and Big Music cartel will once again try to force a decision saying p2p companies can be held responsible if customers use their p2p software to infringe copyrights.

The entertainment industry has already lost once on this in District Court, and again at the Ninth Circuit Court of Appeals.

But Hollywood won't take an unequivocal court decision for an answer and is now trying to bludgeon the US the Supreme Court into reversing.

"The lower court rulings were based on the Supreme Court's landmark decision in the 1984 Sony Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR," says the EFF (Electronic Frontier Foundation) which is representing Morpheus owner StreamCast Networks.

I think they are mostly pissed off that Grokster (and Napster back in the day) are making money off the P2P software.

The **AA must be so steamed that not only does Grokster make money off of ad sales, but they have the nerve to sell a 'pro' version.

Notice how they haven't gone after Justin Frankell for writing Waste (or Gnutella for that matter) and they've ignored Bram Cohen even though Bittorrent takes up a significant portion of internet bandwidt

They haven't gone after Bram Cohen yet. You just try first with the guys who are making money off the P2P program to see if you can put some liability on them, then keep sliding down the slippery slope until you can nail the guy whose program is used for notorious legal purposes (Linux ISOs, World of Warcraft, Anarchy Online, game demos in a few gaming websites come to mind). Just wait.

the website has all this crap about distribution solutions for business

Crap? This was what bittorrent was designed for - distributing ISOs. It's deliberately not encrypted, offers no anonymizing features, and the tracker is a nice, lawsuit-targetable single point of failure for any illegal file. It's about as friendly to the **AA as you can get for a new protocol without contacting them directly with a list of filenames.

The only thing bittorrent does that in any way facilitates piracy is that someone ho

First they came out for Napster
and I did not speak out because I was not Napster
Then they came out for 1-2-3 Studios
and I did not speak out, because I was not 1-2-3 Studios
Then they came out for Grokster
and I did not speak out, because I was not Grokster
Then they came for me,
and I squished them..who are they kidding, I'm Microsoft!

While the original Betamax case was over 20 years ago now, there are three current justices on the Supreme Court who presided over the original case.
O'Connor and Stevens voted in favor of Sony
and Rehnquist voted against.

Some additional information.
Justice Kennedy was sitting on the 9th Circuit appeals court in 1983-84, when this case was originally heard at the federal level. The 9th Circuit voted against Sony, although I have been unable to find how individual Judges voted in the case.

I says right in the Wiki article mentioned above, had you actually read it:

The Supreme Court ruled 5-4 in favor of Sony, with Stevens, Burger, Brennan, O'Connor, and White in agreement, and Marshall, Powell, Rehnquist, and Blackmun dissenting. The court held, among other things, that "The sale of the VTR's [video tape recorders] to the general public does not constitute contributory infringement of respondents' copyrights."

As much as it would like to believe the contrary, the Court of Appeals for the Ninth Circuit, to which the parent referred, is not the United States Supreme Court. Had you actually read the comment to which you replied, you would know that.

The Ninth Circuit, like all the circuit courts of appeals, hears cases in three-judge panels. The panel in the Betamax case consisted of Judges Kilkenny and Canby, plus a district court judge named East who was sitting by designation (basically, district judges occasionally sit on appellate panels, and in this case, that happened.) That panel unanimously found Sony liable for distributing the VCR. (If you happen to have a law library nearby, the citation is 659 F.2d 963.)

The Ninth Circuit then denied en banc rehearing, meaning that it refused to rehear the case before a panel of all the circuit judges. The Supreme Court took the case and reversed the panel, 5-4.

Justice Kennedy was apparently never involved in the Betamax case at any level.

It'll also be unlikely that Rehnquist will still be presiding then, his health is failing, he is under chemotherapy and radiation treatments.
I doubt that the Justices will find the Betamax ruling precedent for a pro-Grokster ruling.

Rehnquist has made it clear that he will not actively participate in the court and he will abstain from every decision EXCEPT when the other justices reach a 4-4 tie; only then will he step in to cast the deciding vote.

In each case, the mechanism of distribution changes, but the core principle stays the same. The Betamax case found the creators of the distribution mechanism not liable for the unlawful use (copying copyrighted materials without permission) of it's users.

Of course, there are huge differences. The original case somewhat hinged on the right of Fair Use -- a right the **AA has been trying to destroy at every turn. They believe the only "fair" use is when you pay them for each playback of the content.

In addition, there was no such thing as the DMCA. We can only hope that if / when they try to bring up the DMCA as an argument, the court finally gets a whack at it and declares it unconstitutional (or at least inconsistent with pre-existing fair use right declarations).

Actually this case should be stronger than the original Betamax case. In Betamax the MPAA was fighting the very notion that timeshifting was fair use. In this case the RIAA has stipulated in court that a wide range of content and P2P use is indisputeable legitimate. Not merely fair use, but simply non-infringing.

Well, the big difference I see is that there was no distribution in the Sony case. It allowed someone to make a copy, that's all. Grokster does not allow you to make a copy, it allows you to distribute copies to a theoretically unlimited amount of people. You're computer allows you to make a copy of a DVD (and I believe the jury is still out whether making a copy for yourself is legal). Grokster allows you to distribute that copy to other people.

Grokster does not allow you to make a copy, it allows you to distribute copies to a theoretically unlimited amount of people. You're computer allows you to make a copy of a DVD (and I believe the jury is still out whether making a copy for yourself is legal). Grokster allows you to distribute that copy to other people.

By that logic, a car allows you to distribute drugs to a theoretically unlimited amount of people. Quite frankly, they're going to have a helluva time outlawing P2P while not outlawing TCP/I

Grokster does not allow you to make a copy, it allows you to distribute copies to a theoretically unlimited amount of people.

So does FTP.

So does a web page.

So does NNTP.

So does a mailing list.

That Grokster et al make it easier than the other choices does not change the underlying legal principle (in my non-lawyer opinion). I could fire off an email with an MP3 of a copyrighted song attached to it to everyone in my address book. That's copyright infringement, no question. Why should the maker of my

Grokster does not allow you to make a copy, it allows you to distribute copies to a theoretically unlimited amount of people.

Technically, it does not distribute to others. It merely offers to others the ability to pull the data themselves.

It's the difference between passing out CDs on the street corner to anyone who passes by and having a kiosk that will let people burn a copy of the CD themselves by inserting a blank. The device is a distribution device. It can be used to distribute the owner's origi

"When does the scale change something from legal to illegal anyway? Stealing 5 dollars and stealing 5 million dollars are both crimes. When does non-liability for selling a device with non-infringing uses on the small scale become liabilty for selling a more capable device with non-infringing uses on the large scale?"

The law isn't binary like this -- if you steal $5, it's petty theft, you won't get nay jail time for that. If you steal $5e6, well, then that's grand theft, and it's a felony, and you'll like

"Most people use a VCR not for time shifting but to create their own video library of recorded shows."

But that IS time shifting, at least that's what the court in Sony said, and therefore a fair use. Recording something now to watch later is exactly what time shifting is. The problem with the P2P guys is not "time shifting" but distribution.

Well, the big difference I see is that there was no distribution in the Sony case. It allowed someone to make a copy, that's all. Grokster does not allow you to make a copy, it allows you to distribute copies to a theoretically unlimited amount of people.

With each individual ending up with a copy. Hence, it facilitates making a copy.

Distributing the same copy multiple times means the same as making a copy since you end up with a different copy than the one offered up. It's not a single copy that gets p

Just a note to those discussing this - the Betamax case was before Sony was seduced by the Dark Side, and the company was the "good guy" in that case. Is Sony any part of the RIAA or MPAA? Has this come full circle?

Either way we can call it a 1984 decision...if they vote pro grockster it's a 1984 betamax decision style 1984, and if they vote against, it's a George Orwell [online-literature.com] style 1984 decision..."BIG BROTHER IS WATCHING YOU..."

So congress will just rewrite the law to suit Hollywood simple as that.

Not quite as simple as that. This fails to note that today (unlike when the CTEA and the DMCA passed) there is substantial indistry opposition to such extensions. So there will be another huge fight like there was over INDUCE, CBIPA (or whatever it was that would have required DRM in cruise missiles)...

>The entertainment industry has already lost once on this in District Court, and again at the Ninth Circuit Court of Appeals.

So this is the third attempt and one at the supreme court too.. When will these people give up ?. Of course the Betamax case [eff.org] clearly puts the distributors of the technology (which has clearly legal uses) out of the danger area.

They already have a date for the decision (July 2005), now if only they'd tell what decision they paid for:)

Uhm.. They'll give up based on what the Supreme Court says. There is no higher court in the US. And anything they say becomes law. They are the ones that keep US Citizen's rights and the ones that revoke them.

...They'll give up based on what the Supreme Court says. There is no higher court in the US. And anything they say becomes law....

Does anyone have a constitutional problem with this statement? I for one am forced to agree with the poster that in fact the Supreme Court's decisions have, in effect (if not in practice also) basically made laws. However, the Constitution clearly grants the power to make laws to congress.

I am disturbed by the idea that judges base their decisions in a case, not on laws the

Well, it's not all that accurate. It'd be better to say that their interpretation of the law becomes strongly binding. (later courts can go against it, but ultimately this'll result in the S.Ct. overturning, or affirming and changing their interpretation)

I for one am forced to agree with the poster that in fact the Supreme Court's decisions have, in effect (if not in practice also) basically made laws.

Of course the Betamax case clearly puts the distributors of the technology (which has clearly legal uses) out of the danger area.

Betamax was a pure hardware device, a simple video recorder. It was not a program library, a catalog, or a distribution system. Dangerous to assume that the court will regard the Betamax decision as controlling.

The Betamax ruling was that the maker of a product - and the court repeatedly used the word product - which was "capable of substantial noninfringing uses" was not liable for any infringment which may or may not be commited by people who use that product.

I'd be absolutely facinated to hear any logic how and why a different liability standard would exist between "software products" and "hardware products".

The only reasons I can see for this new case to go any differently would be emotional bias (if they fi

...I don't see how they could reasonably do that without effectively throwing VCRs back into contributory infringment for the infringment committed with them. But who knows? Maybe we'll wind up with an "infringment tax" slapped on all new VCRs.

Agreed. What's even better is that this has a very nasty flip side -- if, due to this ruling, all home recording devices become infringement and we must pay a "tax" on them, recording now becomes very legal. (You know, like the Canadian CD levy.)

The Betamax ruling was that the maker of a product - and the court repeatedly used the word product -

It is a mistake to rest all your hopes on how a single word was used in a particular case. The Supreme Court tends to pull back sharply from too careless or sweeping a generalization.

Betamax was still nothing more than a video recorder. It presented the same legal problems as a photocopier, fax machine, etc., and that is how the issue would have been framed before the Court in the eighties.

I think most/.ers will agree with me that p2p has become the life blood of the internet. Even look at the World of Warcraft patch distribution system. Its p2p! Should they be sued?
Im sure many of the unenlightened solicitors would say AYE!

...at least the one in the CA bill recently, and essentially a P2P program is defined as a program capable of both upload and download. Like say your browser (http upload forms), email client, basicly everything people consider to be the Internet. The only thing that wouldn't qualify are the dumb terminals of the 70s. It is a blanket coverage to take out whichever application bugs them.

I read the definition...at least the one in the CA bill recently, and essentially a P2P program is defined as a program capable of both upload and download.

In precisely those words, "upload" and "download"?

I have yet to see a P2P program that allows someone to upload a file onto another's machine, in the original, technical sense of the word. Everyone pulls files, i.e. is downloading. No one is uploading.

Anthropomorphizing the machines as the actors is not proper usage of the upload/download terminolo

This could easily turn into a case as important as Sony/Betamax. Probably even more so because it will be a more recent ruling and will become cited more often on this topic since it basically deals with the same issues.

I hope an independent film maker is making a documentary about this event. I mean it's perfect for an Indie film It's got a big bad business, a large maybe-bad business, and they are duking it out in the courts.

And after it's all over, they can distribute it in OGG format using Bit Torrent.

Yes, an independendt film maker doing a documentary could easily get distributed using BitTorrent, but..using footage from anywhere [theglobeandmail.com] would stab him in the back echonomically... oh, the irony

which one is big bad, and which one is maybe bad? I'm guessing that since grokster has a large base of users, is probably over 99% illegal, and has a rather foolish name, it's the "big bad". Meanwhile, the completely legal company MGM, whose products don't suck most of the time, could still be evil were there to be a twist in the story, so it comes out to a maybe.

Yeah, don't even think about picking up that knife either. Or crowbar. Or ethernet cord. Or rock. Or pinecone - hell, even that stick and your shoe. And don't you fucking dare pick up that piece of paper. You MIGHT just give me a papercut!

"Plenty, if you market a program for a particular use, or are in a position to control how a program is used, or have reason to know it will be abused."

Tobacco, guns, and numerous other implements in our society fit this description. Even fast-food.

P2P is a file transfer protocal. Let's be clear on this. P2P IS A FILE TRANSFER PROTOCOL. Just like ftp, smtp, http, etc., these are all just ways to facilitate transferring data from point a to point b.

The following quote at the end of the 9th Circuit's opinion really sums up the situation quite well.

"Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well-established distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude."

The only problem is that the 9th Circuit is the most-reversed circuit there is. Their logic here is good and their result is just, but that doesn't mean they won't find out that they were wrong once again.

The only problem is that the 9th Circuit is the most-reversed circuit there is.

Is that by number of cases reversed, or is it by percentage of cases reversed? Some circuits just hear more appellate cases than other circuits. For example, if you have 100 cases and 17 reversed in one circuit, isn't that better than 10 cases and 4 reversed in another circuit?

I'm not certain if it's volume or percentage. I'm not the one who came up with that saying. However, as a general rule of thumb the Supreme Court won't even hear an appeal unless there is a circuit split on the issue (or they think it's just downright wrong, but that happens less often). What I suspect is the case is that the 9th circuit is the most common one to split from other circuits, and is the one most often found to be in the wrong in those situations.

However, as a general rule of thumb the Supreme Court won't even hear an appeal unless there is a circuit split on the issue (or they think it's just downright wrong, but that happens less often).

I thought they based it on whether there was inconsistance in the district rulings (i.e. if the 4th and 9th districts disagree on leagl theory, then it is a good time to have a ruling), or if substantial constitutional issues are at stake. The court could just be afraid that this will start popping up everywhere

That's really a completely separate issue though. In those cases the RIAA is accusing individuals of directly committing copyright infringement. At issue in the Grokster case is whether P2P networks are guilty of contributory infringement based on the actions of those users.

Correct, but I'd like to add one thing: the Supreme Court is hard to reverse, so they try extra hard to get things right. If one court has made a decision and it isn't obviously horridly wrong they prefer to let it stand until a different court comes to a different decision. That way more people have thought about the issue. Then they can read the thinking of everyone who thought about it, and are more likely to come up with the right ruling.

It's volume. By percentage it's pretty average. Someone put together a scorecard of this for 2003 here [goldsteinhowe.com] and while there's not enough data given only the one year, it's pretty clear that the main thing is that so damn many 9th Cir. cases go up. Way more than from anyplace else.

Basically, the 9th Cir. is too big. It needs to be split into a 9th and 12th, just like we split the old 5th into the current 5th and the 11th. (Hell, you might even be able to split it three ways)

I worry about dividing the 9th Circuit, because the only way to divide it that doesn't involve splitting a state or having one circuit that hears almost as many as the 9th currently does is to have "Circuit of California" and the rest of the old 9th. The 9th Circuit is liberal enough (relative to the others) as it is, but limiting it to California would just be nuts.

Then you have the possibility of splitting California, but that would introduce not only the possibility of inconsistency of federal law go

You do understand that the Electoral College and Senate were designed specifically to limit how much authority highly populous states would have over the rest of the nation, right? The United States of America are not a democracy - they are a constitutional republic. If you sit down and think about it, written constitutions and democracy are mutually exclusive.

Yes, because the tabacco plant was all "Dude, let's evolve so that we're dangerous to the human chemical system, then make them smoke us". And wtf is this 'hurt' crap? Most guns are designed to kill things, which is often perfectly legal (raccoons, deer, national enemies). Hurt, my ass. If your target is still alive to hurt, you've screwed up, bud.

That depends on the circumstances. Guns optimally designed to defend you from a burglar or rapist ought to kill -- that minimizes the risk of being subjected to a frivolous lawsuit for hurting the poor widdle cwiminal. Guns optimally designed for war should preferably disable rather than kill -- that takes up more enemy resources unless you're fighting somebody who doesn't give a damn about his own wounded.

Nah. Not the world. God help America if Grokster loses. It'll just mean you've voted yourself one more step off the map.
Hollywood is losing it's glory. The big things coming up are European and Asian movies. And with digital videocameras the way they are now, we can make movies *cheaply*! So why worry about piracy? The DVDs will sell well anyway, and there isn't anywhere near as big an investment as in yesterday's movies. CGI and special effects is getting really cheap too.
Also, we don't have the americ

This is, after all, the USA. After what happened in November, I have given up all hope of ever seeing developments in this country that would not appall any reasonable person. The ship is sinking, people.

As we all know the final ruling will have ramifications on the tech world well beyond P2P
Please, keep the dimensions in check:-)
USA != tech world
Freedom is just another word for nothing left to lose...

I've been reading the documents involved, particularly the Ninth Circuit's decision and the **AA's petition for cert (request that the Supreme Court hear the case). It's been a while since I read Betamax, so I'll have to go back and read it next.

But quotes from the petition are sometimes thought-provoking, sometimes absurd. Most of the petition is **AA saying, "The Ninth Circuit misinterpreted Betamax! Look at the Seventh Circuit; they got it right!" Much of the arguments in the **AA's petition revolve around the argument that since the network could have been designed to block infringement, it should. (Personally, I doubt that the network could be so designed, since not even the mighty **AA has demonstrated an ability to effectively distinguish infringing uses. But most of the arguments have talked about the ability to block, rather than the technically more problematic ability to identify.)

One of the sidesplitters in the petition is this:

Similarly, under the Ninth Circuit's test a defendant's ability to block infringement is rendered irrelevant except in the narrowest circumstances.

The narrowest circumstances? The circumstances we have to consider are those on what we call planet Earth, not whatever alternative dimension that the **AA would like to live in. Indeed, the problem they have is that the "ability to block infringement" is only considered relevant if they actually, in real life do have such ability.

Oh, well, those are narrow circumstances indeed; we should instead consider if, in any imaginable world, they might have such an ability, and bend reality to match that world. Sorry, guys, we have to consider actual ability to block, not what they might have if they set themselves up exactly like Napster.

Most of the petition reads like this. The **AA feel that, because the network was designed without central control, that's evidence that they're guilty. It should have been designed with central control, and should prevent any infringing uses, because that would make the **AA happy. Because it's not designed that way, then Streamcast/Grokster are guilty of contributory and vicarious infringement.

The Ninth Circuit's opinion, by the way, is also a good read. Much less maddening than this petition, for sure.

Making companies liable for illegal actions consciously performed by end users of their products is an extremely bad precedent to set. If I play my music too loudly and am fined for breaking city ordinance, I don't think MGM wants to pay the fine because it's the soundtrack to a movie they own. Basically, even if there is a legitimate justification for shutting down p2p, this is a bad way to go about it.

Since Rehnquist is a dead man walking, and Thomas never asks a single question during a case, but rather issues opinions a priori from his beautiful mind, that leaves only 7 other Supremes who will actually think about the case as argued. None of these people has ever used a P2P; they all can remember the excitement of wireless - FDR's fireside chats over Depression radio. Is there any chance the "final" Grokster decision will reflect the 21st Century freedom of P2P media, or just some disconnected calculus

Quoth the poster, "As we all know the final ruling will have ramifications on the tech world well beyond P2P."

I hate to break it to you, but the United States isn't the center of the universe, tech or otherwise. Yes, the crazy anti-P2P movement will likely have a horrible effect to US residents, but please. Don't generalize.:P

No, if this decision goes badly the US will become a technological backwater. Why, because the decision will give acts like the Induce Act, DMCA, and the new SR96 (not sure if I have that one right) legs to stand on. Technological innovations regarding communications in all forms would come to a screeching halt as ridiculous measure are built into these devices.

But, most of these devices are not built in the US. They are built overseas. So these acts will have a direct

This case is what Jack Valenti and his minions and successor have been waiting for for decades... a case where the Supreme Court must either rule for a highly unsympathetic and shady defendant, or overturn Betamax.

They won't overturn the entire thing. They probably won't even explicitly say they're overturning it. But what will happen is the "substantial noninfringing use" test will be modified, changed to "primarily noninfringing uses" or whatever else it takes to get a rule which excludes Grokster from

WHAT THE FUCK??
How the hell did we get from copyrights to objectifying women, racism, and general stupidity?
Thoughts like this are why I don't like stating my sex and race online, and why I think the human race is screwed in the long run.